Kelly v Mosman Municipal Council [2010] NSWCA 370 | Case summary

MONDAY 13 DECEMBER 2010 DAVID KELLY v MOSMAN MUNICIPAL COUNCIL Ex Tempore Judgment 1 HIS HONOUR: The matter before me today is a notice of motion filed on 8 December 2010. It is brought in proceedings that were begun by a notice of appeal filed on 24 May 2010. The appellant is Mr David Kelly and the respondent is the Mosman Municipal Council. The notice of appeal seeks to appeal against the decisions given by Jagot J, Lloyd J and Biscoe J in some proceedings in the Land and Environment Court between Mr Kelly and Mosman Municipal Council. 2 It is appropriate at the outset to give an outline of those proceedings. On 12 October 2006 the Council filed a Class 4 application in the Land and Environment Court seeking the demolition of the garage structure erected at [address] Mosman which it contended had been erected outside the scope of the development approval that had been granted in 1999. There were some difficulties in service of Mr Kelly in consequence of which the Land and Environment Court made an order for substituted service on him on 10 November 2006. That order was one that Jagot J found the Council was not able to comply with fully because the order required certain documents to be placed under the front door of the house and it proved physically impossible to place the documents under the door, so they were left outside. 3 Another substituted service order was made on 15 December 2006 which made provision for documents to be left at [the same address in] Mosman. 4 Jagot J was satisfied that service had been effected in accordance with that order. On 19 February 2007 Jagot J heard the council's application ex parte and delivered judgment in it. Her Honour's judgment is Mosman Municipal Council v Kelly [2007] NSWLEC 90. The orders that her Honour made required, amongst other things, the demolition of the garage structure. A period of time was allowed in which to effect that demolition. 5 On 31 August 2007 the council filed a notice of motion, a statement of charge and affidavit in support of a notice of motion for contempt alleging that there had been a failure to demolish the structure. Mr Kelly filed a notice of motion on 24 January 2008 that sought to set aside the ex parte judgment and orders of 19 February 2007. 6 On 13 May 2008 Mr Kelly's notice of motion of 24 January 2008 was listed, along with some other notices of motion before Lloyd J. Lloyd J delivered his judgment on 31 July 2008: Mosman Municipal Council v Kelly (No 2) [2008] NSWLEC 229. In the proceedings before Lloyd J, Mr Kelly was represented, as is possible in the Land and Environment Court under section 63 of the Land and Environment Court Act, by an agent who was not a qualified lawyer, namely, Ms Williams. 7 Lloyd J was asked to set aside the judgment of Jagot J on the grounds that it was made in the absence of a party. Lloyd J said at [18] that one of the considerations in the application to set aside a judgment made in the absence of a party is whether the absent party would have any reasonable prospects of success if the proceedings were to be reheard. Lloyd J came to the view that, "Mr Kelly has no arguable defence and no prospect of success." Notwithstanding that, his Honour varied the order for demolition, so that a further postponement of the period in which demolition was required was granted, to a date four months after his Honour's judgment. In the course of the proceedings before Lloyd J, Mr Kelly gave what the judge described as "extensive evidence in which he admitted erecting the present garage structure and stated his reasons for constructing it" [14]. 8 The garage was still not demolished by the expiry of the time that Lloyd J had granted. On 10 February 2009 the Council filed a notice of motion in the Land and Environment Court seeking an order that Mr Kelly be found guilty of contempt for failure to demolish the garage. Biscoe J heard that notice of motion on 26 May 2009. His Honour delivered judgment on 19 June 2009, finding that Mr Kelly was guilty of contempt: Mosman Municipal Council v Kelly (No 3) [2009] NSWLEC 92; (2009) 167 LGERA 91. 9 On 16 February 2010 Biscoe J conducted a hearing relating to sentencing for contempt. Mr Kelly had been represented at the hearing before Biscoe J on 26 May 2009 by Mr King, a barrister. At the sentencing hearing, Mr Kelly was represented by a different agent, Mr McMurtrie. Biscoe J gave his judgment on 23 February 2010; Mosman Municipal Council v Kelly (No 6) [2010] NSWLEC 20. In that judgment his Honour decided it was appropriate to fine Mr Kelly $20,000 and monthly fine of $5,000 so long as the demolition order continues not to be complied with. That order was suspended until 1 July 2010. 10 On 5 March 2010, Mr Kelly filed a notice of intention to appeal that initiated the present proceedings. It appears that there had been an earlier notice of intention filed on 16 July 2009, but no subsequent appeal was lodged from it, so that particular notice of intention to appeal had lapsed. The address that was given as Mr Kelly's address in the notice of intention to appeal of 5 March 2010 was a caravan park in a Victorian town. 11 On 24 May 2010 Mr Kelly filed a notice of appeal at which his address was once again given at the caravan park in Victoria. 12 There have been a variety of directions hearings in the present matter. The registrar has given some directions, including directions that evidence be served by 23 September 2010 and then another direction that any evidence of Mr Kelly be served by 6 December. 13 At hearings before the registrar in this appeal, Mr Kelly has appeared by representatives on three occasions, namely, 22 September 2010, 19 August 2010, and 1 November 2010. On 11 October 2010 a Mr Strong sought leave to appear for Mr Kelly, and I am informed that that leave was not granted but, nonetheless, Mr Strong made some submissions to the court on Mr Kelly's behalf. 14 It is apparent that Mr Kelly has made an application for legal aid and it is only comparatively recently that his application for legal aid has been rejected by the relevant authorities. 15 The notice of motion presently before the court is one that states a "contact name and telephone" number for Mr Kelly. It is care of Ms Lydia Williams at a particular post office box at Spit Junction. 16 The orders that the notice of motion seeks are: "1 Lydia Williams be granted leave of the court to appear as McKenzie friend for David Kelly until such time as a legal representative is appointed. 2 David Kelly be granted pro-bono legal representation. 3 David Kelly be granted leave to appeal. 4 All judgment orders in the court below, and costs orders arising, be stayed until the matter has been fully heard. 5 That the matter of David Kelly and Lydia Williams vs Mosman Municipal Council in the Supreme Court of NSW, Equity Division, be linked to this matter in the Court of Appeal, and be heard prior to the Appeal." 17 I have already today granted Ms Williams leave to appear as McKenzie friend for Mr Kelly for the purpose of today's hearing. I do not think that it is appropriate to grant her leave to appear as a McKenzie friend on an indefinite basis. I think that the right of someone to appear as a McKenzie friend is a matter that should be in the control of the particular court that is hearing any particular application, that is in a position where it is able to revoke its own order if circumstances arise. In putting it that way, it is only fair that I should say that nothing has happened in the course of today's hearing that has given me the slightest concern that it might have been appropriate to revoke the leave that I granted to Ms Williams today. It well may be that an order granting leave to appear (or, more appropriately, assist) as a McKenzie friend is interlocutory and thus inherently open to alteration, but it is better for the extent of the leave granted to be clear on the face of the order. 18 Such power as the court has to make an order for pro bono assistance to be provided to a litigant arises under Uniform Civil Procedure Rule 7.36. Under that provision it states: "(1) If satisfied that it is in the interests of the administration of justice, the court may, by order, refer a litigant to the registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance. (2) For the purposes of subrule (1), the court may take into account: (a) the means of the litigant, and (b) the capacity of the litigant to obtain legal assistance outside the scheme, and (c) the nature and complexity of the proceedings, and (d) any other matter that the court considers appropriate. … (4A) If the registrar is unable to arrange legal assistance for a litigant who is referred under this rule within 28 days after the litigant's referral, the registrar may make an order terminating the litigant's referral." 19 Ms Gleeson who appears today for the Council, reminds me that the rule imposes as a precondition for the making of an order, that the court be satisfied that it is in the interests of the administration of justice to make the order. Any orders for pro bono legal assistance need to be made bearing in mind that the resources of the Pro Bono Panel are limited, that the lawyers whose names appear on the Pro Bono Panel provide their services voluntarily, and that the Court should ask them to give up their time and exercise their skill only in circumstances where there is an appropriate reason, for the overall administration of justice, to make that request. 20 Ms Gleeson submits that it is, therefore, necessary to consider the grounds of appeal, in deciding whether an order under UCPR 7.36 should be granted. I accept that submission. 21 The notice of appeal seeks to appeal from the orders of Jagot J of 19 February 2007, the order of Lloyd J of 31 July 2008 and the orders of Biscoe J of 19 June 2009 and 23 February 2010. Those dates do not themselves appear in the notice of appeal, but it is possible to work them out from the listing of dates of hearing that is contained in the notice of appeal. 22 In my view, the various orders that are sought to be appealed against need to be considered separately. The order of Jagot J of 19 February 2007 was a final order. Under the Land and Environment Court Act 1979 section 58(1) provided a right of appeal to the Supreme Court against her Honour's order. That right of appeal was not availed of. 23 The orders of Lloyd J refusing to rehear the decision of Jagot J, but extending the time, even if it was an interlocutory order or decision, was an appeal concerning which section 58(1) of the Land and Environment Court Act granted a right of appeal to the Supreme Court. If that order was in truth classified as an interlocutory order or decision, it would be necessary, pursuant to section 58(3) of the Land and Environment Court Act for the leave of the Supreme Court to be granted. However, no proceedings were instituted in the Supreme Court seeking either to appeal as of right against the order of Lloyd J or seeking leave to appeal against it. Nor, once the application to reopen the hearing before Jagot J had been refused was any application made to the Court of Appeal for an extension of time in which to seek leave to appeal against the orders of Jagot J. Insofar as the notice of appeal purports as of right to appeal against the orders of Jagot J and Lloyd J it is quite significantly out of time. It would, therefore, be possible for any appeal against those orders to succeed only if an extension of time were granted. 24 Insofar as an attack is made in the grounds of appeal against the orders of Jagot J, appeal ground one contends that natural justice was not complied with, because that order was made behind the appellant's back and his defence has not been heard. In the course of oral submissions today, Mr Kelly referred me to a passage in Quick and Garran's Annotated Constitution of the Commonwealth at 614 in its commentary of section 51(xxiv) of the Constitution -- the power of the Federal Parliament to make laws for service and execution throughout the Commonwealth of process and judgments. The passage stated a principle of the common law and not of constitutional law that, "No man can be legally bound by a judgment given behind his back and without his having had an opportunity of being heard" (per Earle CJ in Re Brook 33 LJ CP at 246). 25 The jurisdiction of the court now is exercised in accordance with rules which themselves have a statutory backing. In circumstances where rules of court make provision for orders for substituted service, the statement of Earle CJ does not continue to apply in its full force. In circumstances where the orders for substituted service were made, and have been found to have been complied with, I would not regard appeal ground one as having a reasonable prospect of success. 26 The next ground of appeal, ground two, contends that a notice of motion challenging the jurisdiction of the court below was never heard and, therefore, remains unresolved. That particular notice of motion has not been identified to me in the course of the hearing today. However, if a party files a notice of motion that seeks to challenge the jurisdiction of the court, and that notice of motion is never brought on for hearing, it is hardly a ground of criticism that the notice of motion has remained unresolved. In any event had there been any basis for challenging the jurisdiction of the court below -- whether as constituted by Jagot J or as constituted by Lloyd J that ground would have been available on an appeal from those decisions. As I have stated, no such appeal was sought to be brought in time. 27 Ground three submits that the authority to instigate "these proceedings" - which in the context means, I think, the proceedings in the Land and Environment Court - is challenged because of what are said to be: "errors of law in relation to and not limited to the: a. Local Government Act 1993 b. the Supreme Court Act 1970 [NSW] s 62S c. Commonwealth of Australia Constitution Act 1900, s 75.1 d. Crimes Act 1900 as amended 2009 e. ICAC Act." 28 No submission was put as to how the authority to instigate the proceedings was in any way subject to challenge on the grounds identified. In particular section 75 of the Commonwealth Constitution which deals with the original jurisdiction of the High Court seems to have absolutely nothing to do with the matter. There is no section 62S of the Supreme Court Act 1970 NSW. 29 Besides these problems, if there has been an institution of proceedings in any court without authority, the appropriate way in which to raise that matter for determination is nearly always by a notice of motion that challenges the retainer of the solicitor who purported to act with the authority of a litigant in filing court process to institute the proceedings. That notice of motion is heard and determined before any hearing of the principal proceedings is embarked on: Doulaveras v Daher [2009] NSWCA 58. It is only in exceptional circumstances that that manner of proceedings can be departed from, and I see nothing in the present case to have warranted a departure. 30 In those circumstances, I do not regard appeal ground three as one having any reasonable prospects of success. 31 Appeal ground four states "The authority of Local Government pursuant to the Commonwealth of Australia Constitution Act 1900 has not been determined." 32 I have not been shown any basis upon which any ground has been sought to be raised suggesting that any "authority of local government" is in any way open to challenge by virtue of the Constitution Act 1900. The usual principle is that legislation is presumed not to be invalid by reason of infringement of the Constitution until such time as an issue making such a challenge is specifically raised and determined. No specific issue of that type has been raised in the present case. In those circumstances, I do not regard appeal ground four as one that has any reasonable prospects of success. 33 Appeal ground five seeks an extension of time for appeal preparation because: "a. The appellant had heart surgery and a long recovery period which hindered the preparation of the appeal b. The appellant is not resident in New South Wales which hindered the resolution of the appeal c. The appellant suffers from dyslexia which hinders the preparation of the appeal d. The appellant engaged Mark McMurtrie to represent him in the court below on 16 February 2010 and prepare the appeal in the Supreme Court of New South Wales Court of Appeal and the appeal documents have not arrived as yet." 34 The only evidence that has been put before me today relating to the medical condition of the appellant are two medical certificates. The first of them, which became Exhibit A in today's application is a letter from Dr Wilfred Saw, a consultant cardiologist. He confirmed that Mr Kelly has been under his care for cardiac problems since July 2009. He says that Mr Kelly suffered from coronary artery disease and aortic valve stenosis requiring aortic valve replacement and coronary bypass surgery in August 2009. Dr Wilfred Saw says that Mr Kelly's current medical problem is that his blood pressure is difficult to control. His blood pressure on the day of writing the letter, 14 July 2010, was said to be 152/90 mm Hg. Part of his problem with blood pressure control was said by Dr Saw to be ongoing stress associated with his ongoing court case. Currently a recommendation has been made to monitor his blood pressure on a regular basis and to adjust his medications. 35 While the coronary bypass surgery in August 2009 is the sort of surgery that would require a significant recovery period, this evidence does not suggest that there were any problems of a medical nature prior to 2009. The other evidence is a medical certificate from Sydney South West Area Health Service dated 21 July 2010 which says that Mr Kelly was treated on 21 July 2010 for palpitations and "? Arrhythmia" and would be unable to attend from 21 July 2010 to 23 July 2010 inclusive. That comparatively small period of incapacity is of no great significance in the overall context of the time that has elapsed concerning this appeal. 36 Another specific attack is made on Jagot J's decision by ground eight in the notice of appeal. It contends that, in ways not particularly well specified: "a. The learned Judge erred on standards of proof and/or in reliance on inadmissible, unclear or unverified evidence. b. The learned Judge erred in law in relation to service and process of execution of process documents including judgments and orders. c. The learned Judge erred in issue of orders which are not executable. d. The learned Judge erred under constitutional law the awarding of costs to the applicant." 37 None of those grounds, as so stated, provide an explanation as to why an appeal as of right was not sought to be brought from her Honour's decision. I do not regard those grounds as ones that would justify any extension of time in which to appeal from the decision of Jagot J. 38 Some specific attacks are made on the decision of Lloyd J of 31 July 2008 by ground seven of the notice of appeal. Those attacks are: "a. The learned Judge erred in purporting to exercise the power to vary an order of the Court in circumstances where there was no jurisdiction to do so. b. The learned Jude erred in varying the orders of the Court of 19 February 2007 rather than in setting aside the judgment and moving a motion for a re-hearing. c. The learned [Judge] found the respondent did have Development Approval for the garage on the respondents property, however the learned Judge erred in grounds for refusing to se aside judgment which were based on issued never heard and/or having no basis in law. d. The learned Judge erred in not hearing jurisdictional issues before passing judgment." 39 Insofar as ground 7(d) repeats ground two, the same remarks that I have earlier made apply to it. The other grounds of appeal are not well specified. There is no reasonable prospect of success, in my view, shown for an extension of time in which to appeal or to seek leave to appeal, from the decision of Lloyd J of 31 July 2008. 40 The reasons that I have given so far show that it would not be appropriate to make an order for pro bono referral insofar as the notice of appeal purports to appeal from the decisions of Jagot J and Lloyd J. Furthermore, those reasons show that an extension of time should not be granted either to appeal or to seek leave to appeal from the decisions of Jagot J and Lloyd J. To the extent to which the notice of appeal seeks leave to appeal against these judgments, when an extension of time is not granted, the notice of appeal must be dismissed, insofar as it purports to appeal from the decisions of Jagot J and Lloyd J. 41 Ground six of the notice of appeal lists numerous bases of attack on the decision of Biscoe J of 19 June 2009. Insofar as the notice of motion now before me seeks that Mr Kelly be granted leave to appeal, it seeks an order that I as a single judge do not have the power to grant. However, Mr Kelly asked that I consider the application for extension of time in which to seek leave to appeal, as that is a matter that falls within my power as a single judge. The power of a single judge to make orders relating to appeals is stated somewhat delphically in section 46 of the Supreme Court Act. One of the provisions of section 46(2): "A Judge of Appeal may exercise the powers of the Court of Appeal: (a) to make an order or give any direction concerning the institution of an appeal or other proceedings in the Court of Appeal, or (b) to make any order or give any direction in any appeal or other proceedings, but not an order or direction involving the determination or decision of the appeal or other proceedings." 42 That section has been said to be one which should be given a broad construction to enable flexibility and efficiency of the work of the court to be achieved: Wentworth v Wentworth (1994) 35 NSWLR 726 per Mahoney JA. In my view, an order for extension of time in which to seek leave to appeal is one that is within the power of a single judge to make. Section 46(3) provides: "Subsection (2) does not authorise a Judge of Appeal to grant or refuse leave to appeal to the Court of Appeal." 43 It seems to me that section 46(3) was needed to impose an express limitation on a power that might otherwise arise from section 46(2), construed in the light of the decision of Mahoney JA in Wentworth v Wentworth. Further, the Registrar has delegated powers concerning applications for extension of time under rule 51.6, 51.9(1)(b), 51.10(2), 51.11(2), 51.16(1), 51.16(2), 51.17(2) and 51.17(3). That delegation to the Registrar has taken place pursuant to a direction of the Chief Justice dated 2 January 2008 under section 13 of the Civil Procedure Act 2005. It would be a harmonious construction of that delegation, and section 46(2), if a single judge had the same power as a Registrar in that respect. 44 Even though the power exists, it is another question whether it should be exercised. 45 The appeal that has been sought or has been brought from the sentence decision of Biscoe J is one that was appealed against within time. Ms Gleeson submits that section 101(5) of the Supreme Court Act conferred on this court power to hear an appeal from the decision of Biscoe J that contempt had been committed. Section 101(5) provides: "An appeal lies to the Court of Appeal from any judgment or order of the Court in a Division in any proceedings that relate to contempt (whether civil or criminal) of the Court or of any other court." 46 The argument before me today has needed to traverse many different matters. I have some doubt, that has not been adequately resolved by today's argument, whether, even if Ms Gleeson is right in saying that section 101(5) would confer a right of appeal in relation to the decision of Biscoe J that contempt had been committed, that decision is an interlocutory decision made on the way to his ultimate imposition of a sentence that has been validly appealed against. In that situation it is, I think, preferable that the question of whether leave to appeal is needed, and if so, whether it should be granted, should be left for a later determination by more than one judge. 47 Ms Gleeson submits that, even if there were to be an extension of time concerning an appeal from the decision of Biscoe J establishing liability for contempt, there are still some of the grounds of appeal articulated in ground six that have no reasonable prospects of success and concerning which an application for pro bono assistance should not be granted. Those that she refers to as being in this category are grounds 6(b), (d) and (g), namely: "b. The learned Judge erred in holding that the proceedings were for the enforcement of a judgment of the Court but did not fall within UCPR Rule 40 within SCR Rule 55. … d. The learned Judge erred in holding that it was not permissible, in contempt proceedings to challenge whether or not the order made by the court was a nullity, because no appeal had been taken to this Honourable Court at this time. … g. The learned Judge erred in declaring the applicant guilty of contempt as sought by the prosecutor but in giving no or no significant reasons for the verdict including making no finding that the applicant had failed to demolish the premises." 48 Uniform Civil Procedure Rule 40.7, which is the rule which is apparently intended to be referred to in the ground of appeal, is a provision that states that a judgment is not enforceable by committal or sequestration unless certain formal pre-requisites have been complied with. In the present case, the Council never sought to have the orders enforced by committal or sequestration. Biscoe J's finding that the application before him did not fall within rule 40 is not subject to any arguable dispute, in my view. 49 In so far as Biscoe J was dealing with the contempt alleged to have been committed at the Land and Environment Court, Supreme Court Rules, Part 55 does not appear to have any relevance because it is concerned with proceedings within the Supreme Court seeking that the Supreme Court punish for contempt, either of the Supreme Court or of any other court. That was not the position before Biscoe J. 50 When the invocation of both UCPR 40.7 and SCR Part 55 will be fruitless, I do not regard ground 6(b) as one that has any reasonable prospects of success. 51 So far as 6(d) is concerned, it was submitted by Ms Gleeson that the judge had made no finding of the kind that is referred to. If that is so, it is a matter that can be very quickly disposed of, and I would not regard that as a matter that should be dealt with at this stage. 52 So far as 6(g) is concerned, the allegation needs to be divided into two parts. Insofar as there is a challenge to the decision below on the ground that inadequate reasons were given, it is a ground that is in principle able to be brought. Insofar as it specifically criticises the judge for making no finding that the applicant had failed to demolish the premises, I regard it as a totally meritless ground. There has never been the slightest dispute that the premises remain undemolished. 53 In those circumstances, I would not make the order for pro bono referral in relation to 6(b) or in relation to that part of 6(g) concerning that the applicant had failed to demolish the premises. 54 No specific grounds of appeal are recorded concerning the sentence. However, I take it that the basis upon which the sentence is attacked is that the finding of contempt is itself said to be wrong. 55 In these circumstances, when the matters before Biscoe J were in a comparatively small compass, and when a penalty of a significant kind has been visited upon Mr Kelly, and when he is an aged pensioner, I think it would be appropriate in the interests of justice to make an order for a limited referral to the Pro Bono Panel concerning some of the matters in ground six. I shall make such an order at the conclusion of these reasons for judgment. 56 Insofar as order three is beyond my jurisdiction in actually granting leave to appeal, it is appropriate that it be stood over in relation to the two decisions of Biscoe J appealed from, to any final hearing of those matters, and determined at the same time as them. Any extension of time that might be needed can and should be sought at the same time. 57 The decisions that I have made so far have a bearing on prayer for relief number four. Insofar as there are judgments in the court below and costs orders arising from the decisions of Jagot J and Lloyd J, there is no occasion for a stay, when an extension of time to appeal against those matters has been refused. Insofar as an appeal remains on foot concerning the orders imposing a penalty of Biscoe J it is, in my view, appropriate that those orders be stayed until the matter has been fully heard. 58 The fifth prayer for relief concerns some proceedings that have been begun by statement of claim in the Equity Division of the Supreme Court, case number 2010/411246. That statement of claim is one filed on 10 December 2010. The plaintiffs are Mr Kelly and Ms Williams and the defendant is Mosman Council. It seeks damages, quantified (unnecessarily, in the Supreme Court) at $50,000,000, alleging various breaches of duty by the Council in the manner in which it has acted concerning the granting of a development application in May 1999 concerning the garage and the manner in which it has acted concerning attempts to enforce what it has asserted is and Jagot J has found is a non-compliance. Those proceedings are much wider in scope than the appeal that is currently on foot. 59 There is no occasion, in my view, to delay the hearing of the present appeal while those proceedings are on foot. Even if it were right that the Council had committed all the breaches of duty alleged, the duty of a citizen is to obey a court order that requires him to take some particular action. 60 In those circumstances, I decline to make order five in the notice of motion. 61 In the result, the orders that I make are:

Kelly v Mosman Municipal Council

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